NDAA – New Version Gives no Protection to Americans

At first glance it looked like the 2013  version National Defense Authorization Act (NDAA) did more to protect  Americans against indefinite detention. But that’s not true. The new NDAA actually makes it EASIER to detain citizens indefinitely.

Here’s the added clause:

“Nothing in the AUMF or the 2012 NDAA shall be construed to deny the  availability of the writ of habeas corpus or to deny any Constitutional  rights in a court  ordained or established by or under Article III of the Constitution for  any person who is lawfully in the United States when  detained pursuant to the AUMF and who is otherwise entitled to the  availability of such writ or such rights.”

Today another interpretation from Bruce Afran, a lawyer for the group  of journalists and activists suing the government over the 2012 NDAA.

Afran explained that the new provision gives U.S. citizens a right to go to  civilian (i.e. Article III) court based on “any [applicable] constitutional  rights,” but since there are are no rules in place to exercise this right, detained U.S. citizens currently have no way to gain access to lawyers,  family or the court itself once they are detained within the  military.

“The biggest thing about the [2012] NDAA was that you weren’t  getting a trial … Nothing in here says that you’ll make it to an Article  III court so it literally does nothing,” Dan Johnson, founder of People  Against the NDAA, told Business Insider. “It’s a bunch of words,  basically.” Noting the newest version actually goes further than the NDAA that’s now in  effect.

“The new statute actually states that persons lawfully in the U.S. can be  detained under the Authorization for the Use of Military Force [AUMF]. The  original (the statute we are fighting in court) never went that far,” Afran  said.

“Therefore, under the guise of supposedly adding protection to  Americans, the new statute actually expands the AUMF to civilians in the  U.S.”

The suit against the government challenges the indefinite  detention provisions of section 1021 of the 2012 NDAA—which allow the  military to indefinitely detain anyone who commits a “belligerent act” or  provides “substantial support” to the Taliban, al-Qaeda or “associated  forces”—on the grounds that certain terms were unconstitutionally vague and  could chill free speech.

The provisions were permanently  blocked by Judge Katherine Forrest but went back into effect after Appeals  Court Judge Raymond Lohier reinstated  them in October because he agreed with the government that section 1021 was  simply a “reaffirmation” of the AUMF, which gives the president the authority to  indefinitely detain anyone involved in carrying out the 9/11 terrorist  attacks.

The newest version of the NDAA seems to be equating the AUMF and  section 1021 of the 2012 NDAA—which  the government has argued all along—and thereby codifies precisely what the  plaintiffs are fighting in court.

All of this makes the lawsuit—which will probably  go all the way to the Supreme Court—central to the issue of the  indefinite detention of Americans.

The bottom line, according to Afran, is that the  NDAA “is still unconstitutional because it allows citizens or persons in the  U.S. to be held in military custody, a position that the Supreme Court has  repeatedly held is unconstitutional.” source: BusinessInsider